Oregon Advisory Opinions September 01, 1970: OAG 70-68 (September 1, 1970)

OAG 70-68.

The term of two port commissioners for the Port of Umpqua will expire at the end of this year, and nominees for the two positions, which are not designated by position number, will be elected in the November general election. The names of four candidates appeared on the primary election ballot, and we are asked whether only "the two candidates receiving the highest number of votes," or two candidates for each position, or some other number, should appear on the general election ballot; and whether any candidate can have received a "majority of all votes" so as to appear unopposed on the general election ballot.

One of the incumbent commissioners whose term does not expire has apparently indicated an intention to resign, or has resigned, subsequent to the primary election. We are also asked how the person appointed to replace him may obtain a place on the general election ballot.

ORS 777.135 provides that port commissioners are to be

nominated and elected in the same manner as provided for nonpartisan nominations and elections of circuit judges. ORS 252.050 is thus applicable, and in relevant part it provides:

"(1) At all primary elections at which candidates for judge [i.e. port commissioners] . . . are to be nominated, and where two or more petitions or declarations of candidacy for nomination . . . have been filed, the county clerks shall prepare and furnish a ballot [bearing] the names of the candidates for the office ..."

"(2) In districts where circuit judges are elected at large and not for departments or positions, each voter shall have the right to vote for as many candidates as there are vacancies to be filled."

"(3) A ballot shall be delivered to each registered elector . . . the two candidates receiving the highest number of votes as nominees . . . shall be declared the nominees , whose names shall appear on the ballot at the general election ..."

"(4) When any candidate receives a majority of all votes cast for the office for which he is a candidate . . . the name of that candidate shall be printed separately on the ballot at the general election under the designation 'Vote for one'; and the name of no opposing candidate shall be printed on the ballot in opposition to that candidate. One space, however, shall be left following such name in which the voter may insert the name of any person for whom he wishes to cast his ballot." (emphasis supplied).

The statute may be read as not providing for the placing of any more than two names on the general election ballot, whether there are two, three or more positions to be filled. This construction is obviously incorrect, if another is possible. As

the court stated in Eddy v. Stadleman , 148 Or. 216, 221, 35 P.2d 687, 689 (1934):

"'While the legislature may pass absurd legislation if it is so inclined, before a court will adopt such a construction of a statute as will lead to an absurdity, it will inquire whether there is not some other interpretation possible which will not lead to that result. If the language employed admits of two constructions, and according to one of them the enactment would be absurd is not mischievous, while according to the other it will be reasonable and wholesome, the construction which will lead to an absurd result, will be avoided.' 25 R.C.L. 1019; State v. Gates , 104 Or. 112, 216 P. 863)."

It is clear that despite the reference to multiple positions in ORS 252.050(2) the statute fails to prescribe precise rules for such a contest.

We accordingly construe the statute as impliedly providing for up to two nominations, at the primary, for each position to be filled; i.e. up to two nominations for one position, up to four nominations for two positions, or up to six nominations for three positions. This is, of course subject to the provision that if any of the candidates receives a majority of the votes cast for any one position, he is to go on the general election ballot without opposition, and there will be no second nominee for that particular position.

In Eddy v. Stadelman , supra , the court applied the "majority of all votes" provision to provide that only three candidates would be nominated in a four-man race for three positions.

This was a logical result, since a primary is meaningless unless at least one or more of the tail-enders is eliminated, if there are more candidates than positions open.

In State ex rel. Mills v. Howell , 93 Wash. 257, 160 P. 760 (1916), quoted with approval by the Oregon court in the Eddy case, the Washington court held under a similar statute that in a six man race for three positions, each of the first three candidates had a majority and was therefore nominated to run without opposition, notwithstanding that no one of the candidates (as was also true in Eddy ) even approached receiving a majority of all the votes cast for the judicial positions.

In each case the result was reached by fragmenting the nomination race into separate contests for positions, although no position numbers were assigned. In Eddy v. Stadelman , supra , the court held that the two front-runners were nominated for the first two positions; and that therefore the remaining candidates should be considered to be competing only for the third position. Considering only the votes cast for that position, the third candidate of course received a majority and was nominated to run without opposition.

In State ex rel. Mills v. Howell , supra , the court rejected the notion that each of the candidates was running against the field for three positions, instead treating it as three separate races with two candidates for each position. Thus, in each case one of the candidates received more votes than the other, i.e. a majority, and was nominated to run without opposition.

In 33 Op. Att'y Gen. 575 (1968) in a six man race for two positions, it was held that three were nominated for the two positions; on the basis that all save the front-running candidate were to be considered as nominees for the second position, and since none received a majority of the votes, the first two [i.e. the second and third] were nominated. Although the question is not before us, we do not believe that the result was necessarily correct.

In our opinion, the concept that all candidates are running against the field for all positions accurately reflects the facts, and we accordingly reject the authority of State ex rel. Mills v. Howell , supra . We do not believe that the resulting complexity prevents a simple determination of the result. In Eddy v. Stadelman , supra , the court weighted its desire "to remove the judiciary as far as possible from political strife," deeming it therefore proper to reduce as much as possible the need for judicial candidates to campaign in a general election as well as a primary, against the countervailing principle that the voters should be given the opportunity to express their will as far as possible. 148 Or. at 220, 35 P.2d at 689. We are not sure that a principle applicable to judicial elections should be applied in the election of port commissioners, but in our opinion even in judicial elections proper balancing of the principles requires the voters to have an opportunity to vote in a general election for all candidates (not exceeding two per positions) who could be elected by receiving all votes cast for candidates elim

inated in the primary.

Further, it is our opinion that ORS 252.050(4) entitles a front-running candidate who receives a "majority" of the votes cast for one position (as the term "majority" is used in Eddy v. Stadleman , supra , disregarding votes for other candidates already determined to have been nominated), to appear on the general election ballot without opposition, even though other nominees will contest for the remaining un-numbered positions.

It is possible to derive a rule for general application consistent with these principles, with the statute and with the result in Eddy v. Stadelman , if not consistent with State ex rel. Mills v. Howell . It is as follows:

Initially, there must be at least as many nominees as positions to be filled. To determine whether there is to be a second nominee for each position, the votes of the initial nominee should be matched against the votes of all other persons not yet determined to have been nominated. Thus, with six or more candidates for three positions, candidate number one should be matched against candidates four, five and six. If he has a majority, he runs without opposition in the general election. If not, candidate number four becomes the second nominee for one of the three positions, in actuality the fourth nominee for all.

The votes for candidate two are then matched against the remaining candidates; five and six, if four has already been nominated: four, five and six, if not. If candidate two does not have a majority, an additional candidate becomes a nominee. Fin

ally, candidate three is matched against remaining candidates not already nominated. (Of course, candidates two and three cannot be nominated to run without opposition unless they or either of them have a majority over four, five and six, not merely over previously un-nominated candidates.)

Thus, the maximum number of candidates is twice the number of positions, but in any case at least one candidate is eliminated.

In this case candidate one is matched against candidates three and four. If he has a majority, he is nominated to run without opposition. Candidate two is then matched against candidates three and four, and if he also has a majority, there are only two nominees, both appearing without opposition on the general election ballot.

If either candidate one or two fails to obtain more votes than candidates three and four combined, candidate three becomes the third nominee, running against number two alone if candidate one achieved a majority, or against both if he did not. Candidate four is eliminated in any event.

With the probability of a resignation by one of the incumbent commissioners whose term does not expire, the picture is further complicated. His replacement will presumably wish to appear on the general election ballot, and since the primary is now past, he cannot be nominated in the ordinary fashion. Under ORS 777.135, making ORS 249.740 applicable, he may appear on the ballot only if nominated "in the manner provided for the nomina

tion of independent candidates." This procedure, set forth in ORS 249.710 et seq ., requiring nomination through an assembly of electors or a nominating petition, is available not only to the appointed replacement, but to any other person who is qualified to serve as a port commissioner.

In any event, he will be a candidate only for a two year term, that is the balance of the term for which his predecessor was elected, and not for a four year term. See 31 Op. Att'y Gen. 455 (1964). He will thus not be running against the two or three other persons nominated to run for the two four year terms.